A Bill for an Act to amend the Environment Protection and Biodiversity Conservation Act 1999, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Act 2014.
2 Commencement
This Act commences on the day after this Act receives the Royal Assent.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Referral of controlled actions
Environment Protection and Biodiversity Conservation Act 1999
1 Section 66
Before:
An assessment may be done using:
insert:
However, an action may not be referred if:
(a) the action is approved under a bilateral agreement with the Commonwealth and a State or self‑governing Territory; or
(b) the action is being, or is to be, assessed under such a bilateral agreement and a decision has not yet been made about whether the action is approved in accordance with the agreement.
2 Before Division 1 of Part 7
Insert:
Division 1—Application of this Part
66A This Part does not apply if action covered by bilateral agreement
Action approved by State or Territory
(1) This Part does not apply in relation to an action if:
(a) the action is to be taken in a State or self‑governing Territory; and
(b) the action is one of a class of actions declared by a bilateral agreement between the Commonwealth and the State or self‑governing Territory not to require approval under Part 9 for the purposes of a specified provision of Part 3; and
(c) the action is approved in accordance with a management arrangement or authorisation process that is a bilaterally accredited management arrangement or a bilaterally accredited authorisation process for the purposes of the bilateral agreement; and
(d) the provision of the bilateral agreement making the declaration is in operation in relation to the action.
Note: Subsection (1) also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
Action being, or to be, assessed by State or Territory
(2) This Part also does not apply in relation to an action if:
(a) the action is to be taken in a State or self‑governing Territory; and
(b) there is a bilateral agreement between the Commonwealth and the State or self‑governing Territory declaring actions in a class of actions specified in the agreement as not requiring approval under Part 9 for the purposes of a specified provision of Part 3; and
(c) the action is being, or is to be, assessed under relevant State or Territory laws so that the taking of the action will be in a class of actions that may be approved in accordance with a bilaterally accredited management arrangement or a bilaterally accredited authorisation process for the purposes of the agreement; and
(d) a decision has not been made about whether the action is approved in accordance with the bilaterally accredited management arrangement or bilaterally accredited authorisation process for the purposes of the agreement.
Note: Subsection (2) also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
Effect of suspended bilateral agreement
(3) To avoid doubt, subsection (2) is not satisfied at a particular time if, at that time:
(a) the effect of the relevant bilateral agreement is suspended generally; or
(b) the effect of the relevant bilateral agreement is suspended in relation to actions in a specified class and the action mentioned in paragraph (2)(a) is in the specified class.
Note: Suspension of the effect of an agreement may not occur even if notice of suspension has been given, see subsection 62(3).
Actions to be taken in 2 or more States or Territories
(4) If the action is to be taken in 2 or more States or self‑governing Territories, this section does not operate unless it operates in relation to each of those States or Territories.
3 Division 1 of Part 7 (heading)
Repeal the heading, substitute:
Division 1A—Referral of proposals to take action
4 Paragraph 74AA(1)(e)
Omit “Division 1A”, substitute “Division 1B”.
5 Division 1A of Part 7 (heading)
Repeal the heading, substitute:
Division 1B—Decision that action is clearly unacceptable
6 Paragraph 74C(3)(b)
Omit “Division 1”, substitute “Division 1A”.
7 Paragraph 77A(1A)(b)
Omit “relates; or”, substitute “relates.”.
8 Paragraph 77A(1A)(c)
Repeal the paragraph.
9 Paragraph 78(1)(ba)
Repeal the paragraph.
10 Paragraphs 156A(1)(a), 156F(1)(a) and 170A(b)
Omit “Division 1”, substitute “Division 1A”.
11 Subsections 200(3), 215(3), 237(3) and 257(3) (notes)
Omit “Division 1”, substitute “Division 1A”.
12 Application
(1) The amendments made by this Schedule apply in relation to a referral of a proposal to take an action under section 68 of the Environment Protection and Biodiversity Conservation Act 1999, whether made before, on or after the day this item commences.
(2) Despite subitem (1), the Minister may determine, in writing, that the amendments made by this Schedule do not apply in relation to a referral of a proposal to take an action under section 68 of the Environment Protection and Biodiversity Conservation Act 1999 made before the day this item commences.
(3) A determination made under subitem (2) is not a legislative instrument.
Schedule 2—Flexibility in performing assessment of controlled actions
Environment Protection and Biodiversity Conservation Act 1999
1 Section 66
After:
(b) how to assess the impacts of the action to be able to make an informed decision whether or not to approve the action.
insert:
A proposal to take an action is taken to be referred if a declaration is made under a bilateral agreement by the Environment Minister or the appropriate Minister of a State or Territory that an action in a class of actions specified in the agreement is no longer an action covered by the agreement.
2 Subsection 68A(3)
After “refers”, insert “, or is taken to have referred,”.
3 After section 69
Insert:
69A Deemed referral of proposal if declaration made under bilateral agreement
(1) This section applies if a declaration is made under a bilateral agreement by the Environment Minister or the appropriate Minister of a State or Territory that an action in a class of actions specified in the agreement is no longer an action covered by the agreement.
(2) The person proposing to take the action is taken to have referred the proposal to the Minister under subsection 68(1) at the time the declaration is made.
(3) Subsection (2) is subject to paragraph 68A(3)(a).
(4) Subsection 68(3) and 72 do not apply to a referral covered by subsection (2).
(5) Subsection 74 applies to a referral covered by subsection (2) of this section as if:
(a) the reference in subsections 74(1) and (2) to “must” referred to “may” instead; and
(b) subsection 74(3) were omitted and the following subsection substituted:
“Inviting public comment
(3) As soon as practicable after receiving a referral of a proposal to take an action, the Environment Minister:
(a) must cause to be published on the internet the declaration concerned; and
(b) may cause to be published on the internet an invitation for anyone to give the Minister comments within 10 business days (measured in Canberra) on whether the action is a controlled action.
Note: If the action is also the subject of a permit application under section 200, 215, 237 or 257 and the application is made at or around the same time as a referral is taken to have been made under subsection (2), the referral and invitation for comments that must be published under this subsection may be published together with the application and invitation for comments that must be published under section 200, 215, 237 or 257.”.
4 Subparagraph 74AA(1)(b)(i)
After “has been”, insert “, or is taken to have been,”.
5 Section 85
After:
insert:
Alternatively, the Minister may declare that an assessment completed or to be completed by a State or Territory in accordance with a bilateral agreement is an assessment of the relevant impacts of an action for the purposes of this Part.
If a State or Territory has partially completed an assessment of the relevant impacts of an action, the Minister may determine that steps of the State or Territory assessment process are to be used for the purposes of assessing the relevant impacts of the action and the remaining steps are to be carried out under an assessment approach set out in this Part.
6 After paragraph 87(3)(c)
Insert:
(ca) if:
(i) subsection 69A(2) applies in respect of the action; or
(ii) the action is in a class of actions covered by a bilateral agreement and the effect of the agreement is suspended or cancelled;
and a State or Territory has partially completed an assessment of the relevant impacts of the action—the extent to which the partially completed assessment can be used, and the assessment completed, under an approach for assessment set out in this Part; and
7 Paragraph 87(4)(a)
Omit “is to be”, substitute “has been, is being, or is to be,”.
8 Paragraph 87(4)(c)
Repeal the paragraph, substitute:
(c) there has been or will be an adequate assessment of the relevant impacts of the action under the process; and
9 At the end of section 87
Add:
Completing assessment begun by a State or Territory
(7) If:
(a) a State or Territory has partially completed an assessment of the relevant impacts of an action; and
(b) the Minister decides to complete the assessment under an approach set out in this Part;
the Minister must determine, in writing:
(c) which steps of the State or Territory assessment process are to be used for the purposes of assessing the relevant impacts of the action; and
(d) the remaining steps to be carried out under the assessment approach chosen to complete the assessment.
(8) A determination under subsection (7) is not a legislative instrument.
10 After section 87
Insert:
87A Assessment by State or Territory may be used if declaration made under bilateral agreement
(1) Despite section 87, if:
(a) subsection 69A(2) applies in respect of an action; and
(b) the Minister has made a decision under section 75 that the action is a controlled action; and
(c) an assessment of the relevant impacts of the action has been made by a State or Territory under a bilateral agreement;
the Minister may determine, in writing, that the assessment by the State or Territory is an assessment for the purposes of this Part.
(2) To avoid doubt, the assessment of the relevant impacts of the action by the State or Territory may be completed before or after the declaration mentioned in subsection 69A(2) relating to the action is made.
(3) A determination made under subsection (1) is not a legislative instrument.
87B Assessment by State or Territory may be used if bilateral agreement cancelled
(1) Despite section 87, if:
(a) an assessment of the relevant impacts of an action has been made by a State or Territory under a bilateral agreement that includes a declaration described in section 46; and
(b) the effect of the bilateral agreement is suspended or cancelled; and
(c) at the time of the suspension or cancellation, the action has not been approved;
the Minister may determine, in writing, that the assessment by the State or Territory is an assessment for the purposes of this Part.
(2) A determination made under subsection (1) is not a legislative instrument.
11 At the end of section 91
Add:
(3) If, under subsection 87(7), the Minister has determined that:
(a) steps of a State or Territory assessment process are to be used for the purposes of assessing the relevant impacts of the action; and
(b) remaining steps are to be carried out under an assessment approach set out in this Part;
the written notice and the published notice must specify which steps of the State or Territory assessment process are to be used and which steps are to be carried out under this Part.
12 After paragraph 130(1B)(a)
Insert:
(aa) despite paragraph (a), if the action is the subject of an assessment report and a determination has been made under section 87A or 87B in respect of the action—the period of 40 business days beginning on the first business day after the determination is made under the relevant section;
13 Subsection 158A(1) (after paragraph (d) of the definition of approval process decision)
Insert:
(da) a decision to make a determination under section 87A or 87B that an assessment of the relevant impacts of an action by a State or Territory is an assessment for the purposes of Part 8;
14 Paragraph 170C(1)(a)
After “has”, insert “, or is taken to have,”.
15 Paragraph 303FRA(3)(a)
Omit “and 84”, substitute “, 84, 87A and 87B”.
16 Section 528
Insert:
Environment Minister means the Minister administering Chapter 2 of this Act.
17 Application
The amendments made by this Schedule apply in relation to an action that:
(a) has been assessed by a State or Territory before the day that this item commences; or
(b) is being assessed by a State or Territory on that day; or
(c) will be assessed by a State or Territory on or after that day.
Schedule 3—Accreditation of certain State processes
Part 1—Amendments relating to water resources
Environment Protection and Biodiversity Conservation Act 1999
1 Subsection 29(1)
Omit “, other than section 24D or 24E,”.
2 Subsections 46(2) and (2A)
Omit “, other than section 24D or 24E,”.
3 Subsection 505E(1)
Omit “(1)”.
4 Subsection 505E(2)
Repeal the subsection.
5 Application
The amendments made by items 1 and 2 of this Part apply in relation to a referral of a proposal to take an action under section 68 of the Environment Protection and Biodiversity Conservation Act 1999, whether made before, on or after the day this item commences.
Part 2—Amendments relating to bilaterally accredited authorisation processes
Environment Protection and Biodiversity Conservation Act 1999
6 Subparagraph 29(1)(d)(ii)
Omit “in a law of the State or Territory”, substitute “, wholly or partly, in a law of the State or Territory or an instrument made under such a law, or is made, wholly or partly, under such a law”.
7 Subparagraph 31(1)(f)(ii)
Omit “in a law of the State or self‑governing Territory”, substitute “, wholly or partly, in a law of the State or self‑governing Territory or an instrument made under such a law, or is made, wholly or partly, under such a law”.
8 Paragraph 46(2A)(a)
Omit “in a law of the State or Territory that is a party to the agreement”, substitute “, wholly or partly, in a law of the State or Territory that is a party to the agreement or an instrument made under such a law, or is made, wholly or partly, under such a law”.
9 Section 528 (definition of authorisation process)
Repeal the definition, substitute:
authorisation process means a process:
(a) that is:
(i) set out, wholly or partly, in a law of the Commonwealth, a State or Territory; or
(ii) set out, wholly or partly, in an instrument made under a law of a State or Territory; or
(iii) made, wholly or partly, under a law of a State or Territory; and
(b) under which actions are authorised.
10 Application
The amendments made by this Part apply in relation to an action assessed under a bilaterally accredited authorisation process on or after the day this item commences.
Schedule 4—Minor amendments of bilateral agreements
Environment Protection and Biodiversity Conservation Act 1999
1 After section 46
Insert:
46A Minister may make determinations relating to minor amendments of management arrangements or authorisation processes
(1) This section applies in respect of a bilateral agreement with a State or self‑governing Territory including a declaration described in section 46 if a management arrangement or authorisation process that is a bilaterally accredited management arrangement or a bilaterally accredited authorisation process for the purposes of the agreement is amended.
(2) Despite subsections 46(3) to (8), the Minister may determine, in writing, that the management arrangement or authorisation process as amended continues to be a bilaterally accredited management arrangement or a bilaterally accredited authorisation process for the purposes of the agreement without further accreditation if the Minister is satisfied that:
(a) the amendment:
(i) will not have, or is not likely to have, a material adverse impact on a matter protected by a provision of Part 3 in relation to which the agreement makes a declaration; and
(ii) would not be likely to have a material adverse effect on a person’s ability to participate in the process provided for by the management arrangement or authorisation process; and
(b) the following provisions would continue to be satisfied in respect of the management arrangement or authorisation process:
(i) paragraphs 46(3)(a) to (c);
(ii) subsections 46(9), 51(2), 51A(2), 52(2), 53(2) and 54(2);
(iii) section 55.
(3) If the Minister makes a determination under subsection (2), the Minister must publish the determination as soon as practicable after it is made.
(4) A determination under subsection (2) is not a legislative instrument.
(5) In this section:
amend includes repeal and remake.
46B Application of determinations made under section 46A
(1) A determination made under section 46A applies in relation to an action that is approved, because of a declaration in a bilateral agreement, in accordance with an amended management arrangement or authorisation process for the purposes of the agreement, even if the action was approved before the day the determination is made.
(2) For the purposes of subsection (1), it does not matter when the bilateral agreement is entered into.
2 After section 47
Insert:
47A Minister may make determinations relating to minor amendments to the manner in which actions are assessed
(1) This section applies in respect of a bilateral agreement with a State or self‑governing Territory including a declaration described in section 47 if the specified manner in which actions are assessed for the purposes of the agreement is amended.
(2) Despite subsections 47(2) to (4), the Minister may determine, in writing, that the manner of assessing actions, as amended, continues to be a specified manner of assessment for the purposes of the agreement if the Minister is satisfied that:
(a) the amendment:
(i) will not have, or is not likely to have, a material adverse impact on the assessment of the impacts actions have, will have or are likely to have on a matter protected by a provision of Part 3 in relation to which the agreement makes a declaration; and
(ii) would not be likely to have a material adverse effect on a person’s ability to participate in the process for assessment; and
(b) subsection 47(2) would continue to be satisfied in respect of the amended manner of assessment.
(3) If the Minister makes a determination under subsection (2), the Minister must publish the determination as soon as practicable after it is made.
(4) A determination under subsection (2) is not a legislative instrument.
(5) In this section:
amend includes repeal and remake.
47B Application of determinations made under section 47A
(1) A determination made under section 47A applies in relation to an action that is assessed in accordance with an amended manner of assessment, being a specified manner for the purposes of the bilateral agreement, even if the action was assessed before the day the determination is made.
(2) For the purposes of subsection (1), it does not matter when the bilateral agreement is entered into.
Schedule 5—Miscellaneous
Environment Protection and Biodiversity Conservation Act 1999
1 Subsection 46(1)
Repeal the subsection, substitute:
Declaration of actions not needing approval
(1) A bilateral agreement may declare that actions in a class of actions specified in the agreement wholly or partly by reference to the fact that their taking has been approved in accordance with a management arrangement or authorisation process, being a bilaterally accredited management arrangement or a bilaterally accredited authorisation process for the purposes of the agreement, do not require approval under Part 9 for the purposes of a specified provision of Part 3.
Note: An action may be approved in accordance with a management arrangement or authorisation process before the management arrangement or authorisation process is accredited for the purposes of an agreement with a State or self‑governing Territory.
2 Subsection 46(3)
Omit “the Minister is satisfied that”.
3 Paragraph 46(3)(a)
Before “the management arrangement”, insert “the Minister is satisfied that”.
4 Paragraph 46(3)(b)
Before “there has been”, insert “the Minister is satisfied that”.
5 Paragraph 46(3)(c)
Before “actions approved”, insert “the Minister is satisfied that”.
6 After paragraph 46(3)(c)
Insert:
; and (d) the Minister has considered any other matter that the Minister considers relevant.
7 Subsection 46(3) (note)
Omit “Note”, substitute “Note 1”.
8 At the end of subsection 46(3)
Add:
Note 2: Paragraph (d)—matters that the Minister might consider relevant may include, for example, the terms of the bilateral agreement or State policies or plans.
9 After section 48
Insert:
48AA Agreement may apply, adopt or incorporate other instruments
Despite section 46AA of the Acts Interpretation Act 1901, a bilateral agreement may apply, adopt or incorporate (with or without modifications) an instrument or other writing:
(a) as in force at a particular time; or
(b) as is in force or existing from time to time;
even if the instrument or other writing does not yet exist when the agreement is entered into.
10 Application
(1) The amendment made by item 1 of this Schedule applies to an action that is approved in accordance with a management arrangement or authorisation process that is a bilaterally accredited management arrangement or a bilaterally accredited authorisation process for the purposes of a bilateral agreement on or after the day this item commences, regardless of when the agreement is entered into.
(2) The note to subsection 46(1) of the Environment Protection and Biodiversity Conservation Act 1999, inserted by item 1 of this Schedule, applies to a management arrangement or authorisation process that is accredited for the purposes of a bilateral agreement on or after the day this item commences, even if an action was approved in accordance with the management arrangement or authorisation process before that day.
(3) The amendments made by items 2 to 8 of this Schedule apply to a management arrangement or authorisation process that is accredited for the purposes of subsection 46(2) or (2A) of the Environment Protection and Biodiversity Conservation Act 1999 under a bilateral agreement on or after the day this item commences, regardless of when the agreement was entered into.
(4) The amendment made by item 9 of this Schedule applies to a bilateral agreement entered into before, on or after the day this item commences.